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“A death row of sorts”
The Centre for Crime and Justice with a new briefing on indeterminate custodial sentences in the UK

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IPP equivalents in Scotland and Northern Ireland

The Centre for Crime and Justice has today (24 July 2023) published a briefing on indeterminate custodial sentences across the UK entitled “A death row of sorts”. Regular readers will be familiar with the persistent injustices of IPPs in England & Wales, but the briefing also covers the indeterminate custodial sentence (ICS) in Northern Ireland; and the order for lifelong restriction (OLR) in Scotland.

All three sentences work in a way similar to the life sentence: an indeterminate period in custody, followed by ongoing supervision on release in the community, if the prisoner manages to secure release. They can, though, be imposed for a far wider range of offences than is allowed for by the relatively narrow set of offences in the case of a life sentence.

The main conclusion drawn by the briefing relates to the question of whether such sentences should be considered a form of psychological torture. With the failed abolition of the IPP sentences in England and Wales, and the ongoing operation of the ICS and OLR sentences in Northern Ireland and Scotland, the torturous and unfair aspects of these indeterminate sentences are likely to become ever more apparent.

Risk of indeterminate sentences

The briefing highlights a number of documented health risks to people serving indeterminate sentences in all parts of the UK which are discussed in detail below. They include:

Failure to manage the period of uncertainty beyond the tariff

The division of the sentences into a period of compulsory imprisonment and a period with the possibility of release raises important questions about conditions and expectations. The majority of people serve long beyond the tariff set for their original offence by the sentencing judge:

  • By 2022, three quarters (75 per cent) of unreleased IPP prisoners had been in custody for over twice their original tariff length
  • During the year 2021-22, 151 active cases were past the punishment part of the OLR sentence and still in prison, compared with five being supervised in the community
  • Currently, there are 233 individuals serving an OLR sentence, but only 17 have ever been released

Risk assessments are not individualised

The passage of years in prison introduces increasing uncertainty in relation to the original offences and spotlights instead signs of behaviour and attitudes that relate to the prison context. A realistic assessment becomes very challenging, unless there is positive work to motivate and empower the individual. It is all too easy therefore to fall back on an original attribution of ‘dangerousness’, and take a negative view of the prospects of release.

There is a form of Catch 22 in that the longer an individual serves past their original tariff, the less likely an individual assessor is to contradict their predecessors and recommend release. An individual’s mental health (and possible behaviour) is likely to deteriorate when it is not clear what they need to do to secure their release.

Lack of access to rehabilitation and support

Evidence around the IPP sentence indicates that courses and programmes are not being sufficiently provided. In addition, mental health needs are not well-served in the prison system, and even well-funded specialist services have had only qualified success. Without access to these services, people may be assessed as unready for release with a consequent deterioration in their mental health.

A high bar for release

In England and Wales, the statutory test applied by the Parole Board is that the prisoner must be assessed as ‘safe to release’. Yet too often the process has been fraught with failings.

In Scotland, research suggests that Parole decisions in OLR cases have also been affected by inefficiencies.

 

Lack of adequate post-release support

Evidence suggests that the lack of adequate post-release support often leads to frequent recalls to prison. The ten-year minimum post-release licence for IPPs means that recalls (and repeated recalls) are extremely common – there were 1,434 recalled IPP prisoners in custody on 30 September 2022.

Mental health decline

One or more of these adversities may have little impact: it is the cumulative experience of disappointments and rejections over long periods that is likely to lead to despair and a sense of helplessness. Various Independent Monitoring Boards have reported on the negative treatment of IPP prisoners.

After the government had rejected the Justice Committee’s resentencing recommendation, a report by the Independent Monitoring Boards noted subsequent suicides, amidst general dismay among prisoners at the news.

Conclusion

Reviewing the three indeterminate sentences, it appears that there are some common features, in particular, the incorporation of preventive detention in the latter part of a prison sentence. That important change of status calls for appropriate detention conditions, different from the normally sentenced. Crucially, the determination of risk, and decision-making about release, are subject to influences which can slow and complicate progress towards release. In the case of IPP, the system has rightly been judged by a parliamentary committee to be “irredeemably flawed”.

The briefing cites the UN Special Rapporteur on psychological torture which identifies how, arbitrariness and uncertainty can lead to adverse psychological consequences, which can amount to torture. It also cites the Rapporteur that lawful sentences are not exempt from being appropriately labelled as torture:

“Importantly, in order to be ‘lawful’, sanctions cannot be open-ended, indefinite or grossly excessive to their purpose, but must be clearly defined, circumscribed and proportionate.”

The bulletin concludes with the key question:

“How is it that the IPP sentence, abolished by Parliament over ten years ago can be allowed to inflict more despair?”

Meanwhile, the OLR and ICS sentences remain in force.

 

Thanks to Andy Aitchison for kind permission to use the images in this post. You can see Andy’s work here

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